Native injustice comes full circle

In the two decades since Canada passed amendments to the Criminal Code instructing judges to make use of alternative rehab for Aboriginal offenders, the proportion ending up behind bars has more than doubled

Andrew Kreko was raised by white parents in Ajax. His mother abandoned the family when he was a toddler, but his upbringing was otherwise unexceptional - until his late teen years, when Kreko found out he was adopted and Indigenous.

The trauma of losing his identity was generations in the making - and inextricable from the "systemic disadvantage" his Indigenous ancestors faced. That's what the Court of Appeal for Ontario ruled last May when it reduced Kreko's sentence for robbery and various weapons offences from 13 to nine years.

Canadian justice isn't supposed to be colour-blind when it comes to Indigenous peoples. Legal precedent requires judges to arrive at sentences for Indigenous peoples differently to take into account the continuing history of injustice they've suffered at the hands of settler society. It's a radical approach born more than two decades ago in response to the high incidence of incarceration among Aboriginal people.

On paper, the system could transform how society sees culpability. But in practice, Indigenous peoples' relationship to the criminal justice system is actually getting worse.

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On May 5, 2012, armed with a gun, Kreko robbed Jason Gomes of his necklace and cellphone. Kreko fled on foot, but Gomes got into his BMW and rammed him, launching Kreko into the windshield and over the car. Kreko fired four bullets, one of which grazed Gomes's head; another went into Kreko's own leg.

In reducing his sentence, the Court of Appeal judges dwelt on a different series of facts. Kreko's birth mother, who is Indigenous, was hospitalized when she was four years old after she drank her mother's alcohol. Her mother, Kreko's maternal grandmother, suffered from depression and alcoholism and died at 28.

In 1996, Indigenous peoples made up about 2 per cent of Canada's population and 11 per cent of people in prison. That year, Parliament passed an amendment to the Criminal Code, Section 718.2(e), instructing judges not to imprison people whenever it could reasonably be avoided and to make use of alternatives like rehab and probation, "with particular attention to the circumstances of Aboriginal offenders."

Nevertheless, in the two decades since, the proportion of Indigenous peoples behind bars has more than doubled. Indigenous peoples now make up about 4 per cent of the population and 26 per cent of the prison population, despite that Criminal Code change and a landmark Supreme Court ruling in 1999 in the case of Jamie Tanis Gladue.

Gladue stabbed her partner to death. She pleaded guilty, but the Supreme Court of Canada found that Indigenous people may have "unique systemic or background factors" that must be considered in their cases. Under the ruling, any time an Indigenous person's liberty is at stake - whether at sentencing, at a parole hearing or anywhere in between - the judge must look into the ongoing history of the oppression of Indigenous peoples and how that history might explain why that person committed a crime.

The Supreme Court ruling also noted that judges have to take into account the varying histories of justice among Indigenous peoples. Some communities have "restorative justice" traditions that emphasize reconciliation and restitution, for example. Judges have to consider those traditions to avoid meting out "culturally inappropriate" sentences, the Court ruled.

In short, the Gladue ruling recognized that Indigenous peoples are overrepresented in prisons because of the generational fallout from Canada's history of colonialism, cultural genocide and mass abductions of children, among other things.

The Gladue ruling "takes into consideration the effect the government has had on Aboriginal people as a whole," says Shaunna Kelly, a Toronto criminal defence lawyer who works chiefly with Indigenous clients. "It reduces their moral blameworthiness before the court. There are underlying reasons that are not necessarily entirely their fault for why they're there."

There's nothing quite like the Gladue precedent anywhere else in the world, experts say. Australia and New Zealand come closest, with similar practices of restorative justice in place for minor offenders in some jurisdictions and in youth courts. But Canada's comprehensive set-up is the global standard.

"Canada, through the Supreme Court, has done something that's actually quite extraordinary," says Elena Marchetti, a law professor at the University of Wollongong in New South Wales. "We're learning a lot from what's happening in Canada. It's been a really good model to use."

Still, Gladue is a lot less radical than it might seem: it doesn't mean Indigenous offenders automatically get different or shorter sentences, explains Jonathan Rudin, program director of Aboriginal Legal Services of Toronto.

They still have to reveal whatever traumas they might have, and that's no different from how a non-Indigenous person could raise his or her tragic upbringing in a bid for leniency.

And if judges think they have nothing to bare, Gladue won't make any difference for them. It's not like affirmative action for the justice system.

The crux of the Gladue ruling is that the courts have a special obligation to look more closely at an Indigenous person's background. That obligation is typically fulfilled in the form of a what's known as a Gladue report, which delves into family history, any trauma they may have experienced, their strengths and their prospects going forward.

Critics argue that treating Indigenous offenders differently disrespects their victims - who, they point out, are often also Indigenous. Some legal scholars note the perversity of trying to right wrongs committed against Indigenous peoples at the very moment when a judge, who is almost always white, is putting them in chains.

Gladue helps, but "upstream" issues like poverty, policing practices and racism are swamping the precedent's benefits, says Ivan Zinger, executive director of the Office of the Correctional Investigator. If nothing changes, the incarceration rate will continue to rise, he estimates by as much as a percentage point each year.

Further, a 2013 report for the Department of Justice found that Gladue reports routinely don't get done. Practices vary among the provinces. They're written only "rarely" in British Columbia, for example. Kreko was arguably fortunate that his case was heard in Ontario, where the precedent is relatively institutionalized.

Christine Goodwin, who writes Gladue reports in Saskatchewan, says they are rarely written, and those that do get done are produced on an "ad hoc" basis. She mentions a case involving an Indigenous man who's paying her privately to produce a Gladue report for his case because, though the judge said the accused was entitled to one, there was no public money to pay for it.

Goodwin has also been called on to rewrite reports that weren't up to standard.

Even if one does get written, judges sometimes have no option but to lock someone up.

In sentencing an Indigenous man convicted of beating his partner to death, a judge wrote recently that she couldn't implement Gladue "in any meaningful way" because of the dearth of rehabilitative resources available for the man, who was abused as a child and continued to suffer from alcohol addiction.

If Gladue just means people get shorter sentences, but without access to resources that might help them change their lives, it can simply shorten the time before they reoffend, argues Dawn Lavell-Harvard, a former president of the Native Women's Association of Canada.

"We don't want to see the Gladue reports simply become an excuse for lesser punishment," Lavell-Harvard says. "It's really about changing the mindset from punishment to treatment and healing."